THE ENTERPRISE AND REGULATORY REFORM ACT HAS REVERSED THE NORMAL WORKINGS OF COPYRIGHT.
image © 2013 Jason Brown. Please feel free to copy and redistribute this image.
Normal copyright law as agreed in international copyright treaties, to which the UK is signatory, grants copyright owners 'the exclusive right of authorizing the reproduction of [their] works, in any manner or form.' Creators don’t have to apply for this right: it is theirs automatically and without formality. This means that unless it is used under one of the narrowly-defined Fair Dealing exceptions to copyright allowed by these treaties, it is illegal to exploit a copyright work without the permission of its owner.
The EAA Act changes that. Under its provisions it will be legal to exploit a copyright work - photograph, film, text, song, whatever - without the knowledge, permission of, and payment to, its owner.
Why has this happened? The full story will have to wait for a later article, but here it is sufficient to examine three statements made by the Government and reported by the BBC.
1. ‘…the government said the act made “copyright licensing more efficient”.’
Yes, if by 'efficient' you mean 'no longer having to find, get permission from, and pay property owners before exploiting their property'. For almost any other kind of property, this idea would be outrageous. Imagine if this applied to cars, houses or bank accounts.
2. ‘They are intended to help remove unnecessary barriers to the legitimate use of works while preserving the interests of rights holders.’
As we have said earlier, international copyright treaties grant copyright owners 'the exclusive right of authorizing the reproduction of [their] works, in any manner or form.' If this is an 'unnecessary barrier to the legitimate use of works', quite how are 'the interests of rights holders' being preserved by breaking it? The legitimate interests of foreign rights owners are certainly damaged and their rights breached by this Act.
3. ‘The powers do not remove copyright for photographs or any other works subject to copyright, nor do they allow anyone to use a copyright work without permission and free of charge.’
This is a typically evasive bureaucratic statement which is technically correct but avoids the real question and is misleading and inaccurate in its effect. It makes two points:
a. ‘The powers do not remove copyright for photographs or any other works subject to copyright,’
Correct. We didn’t say they did. However, the powers breach copyright owners' exclusive right of authorizing the reproduction of [their] works, because it will be legal to exploit copyright works without their owners' knowledge, permission, and payment to them. The practical result is that the works will remain in copyright but no longer enjoy the protection of copyright, because their owners can no longer exclusively authorise their reproduction. And so, for these works, ‘copyright’ becomes worthless and meaningless.
b. ‘ …nor do they allow anyone to use a copyright work without permission and free of charge.’
Whose permission? Not the copyright owner's. Who will be paid? Not the copyright owner, because by definition for an orphan work he cannot be found. The copyright owner will get no benefit whatsoever from the commercial exploitation of his work; work which is often made with great skill and at considerable difficulty and cost, in order to generate licensing income for its creator.
Some people complain that many orphan works were never made with commerce in mind, and because of that they ought to be free to exploit. This is a nonsense. If a work has sufficient value to make it exploitable, its owner ought to enjoy a fair whack of the proceeds as is his right under international law. If that work becomes newsworthy and of great value to media organisations (or advertising companies masquerading as tech companies and social media) it becomes a 'lottery winner'. Why should the creator of the winning lottery ticket not collect his prize? He does in other lotteries.
Legalised copyright infringement schemes enabled under the ERR Act will not come into force until the regulations controlling them are enacted some time before the end of this year, and so direct action is still worthwhile.
It would be useful to let the Minister for Intellectual Property, Viscount Younger of Leckie, know what you think. Other Parliamentarians and your local MP might also like to know your thoughts.
- D-ERR. UK copyright owners no longer control the right to copy their work by Dominic Young
- UK.Gov passes Instagram Act: All your pics belong to everyone now by Andrew Orlowski for The Register
- Controversial copyright framework receives Royal Assent by Olivier Laurent for the British Journal of Photography
- Photographers' anger at law change over 'orphan works' by Dave Lee for the BBC
- Enterprise and Regulatory Reform Bill receives Royal Assent by Eleonora Rosati for IPKat
- Twitter users stripped of rights to own snaps by Etan Smallman for the Metro
- "Instagram act" under fire for treatment of copyrighted works by Alex Hern for the New Statesman
- The end of copyright as we know it? Still on the Enterprise and Regulatory Reform Bill (still unavailable) by Eleonora Rosati for IPKat
- The Copyright Killings on PicturePark
02 May 2013: cleaned up some grammar to make it more difficult to misapprehend and mis-represent some statements; replaced the graphic with a more family-friendly version
A household name since the 1960’s, David Bailey is one of the UK’s most iconic photographers. On hearing of what the government proposes to do with his property in the Enterprise and Regulatory Reform Bill he has written to Chancellor of the Exchequer, George Osborne. He says:
‘Why can’t copyright be dealt with properly in a proper Copyright Bill? I’m told everyone will be able to get their hands on our so-called “orphans” so libraries and museums can publish old photographs whose authors have long been forgotten.’
‘So now commercial organisations will be allowed to make money from our “orphans”, but not us, the creators.’
‘This legislation should never have been even considered without first giving us our moral rights, and is contrary to our rights under the Berne Convention. Why the rush? A scheme, the Copyright Hub – a scheme backed by the government – is being developed to ensure that those who wish to find our pictures can not only do so quickly online, but also find the contact details of the pictures’ owners. You are about to put the cart before the horse.’
‘I’m told the real reason for speed is that “releasing” orphans will create growth. We all understand the need for growth. But where’s the evidence? The seemingly impressive financial figures presented originally in the Hargreaves Review have mysteriously had to be revised – down by 97%! Which now apparently amount to no more than 80p per taxpayer per year. Given the damage this legislation will now cause to taxpaying creators, damage no-one has so far taken into account, the effect of this legislation on economic growth will in fact be negative.’
Read his full letter here, and then Tweet it to MPs.
David Bailey is @BaileyQuotes
George Osborne is @GOsborne_MP
On Tuesday 16th April the Enterprise and Regulatory Reform Bill enters its final Parliamentary phase before becoming law. This is our last chance to remove from it the damaging Orphan Works and Extended Collective Licensing Clause 79. Please contact your MP and other Parliamentarians, making the following recommendations:
- Remove the Orphan Works and Extended Collective Licensing Clause 79 from the ERR Bill
- Implement the EU Orphan Works Directive at the last possible moment, because it directs us to breach our obligations to foreign rights owners under the Berne Convention
- Revisit IP in an Intellectual Property Bill once the Copyright Hub is operational and the government has a metadata policy, which at the moment it does not
- Return responsibility for copyright to the Department for Culture, Media and Sport. Patents are limited formal economic rights granted by Government upon application, and rightly handled by the Patents Office (which is an Agency of the Department for Business, Innovation and Skills, and of which ‘Intellectual Property Office’ is an operating name). Copyright is an informal automatic combined economic, cultural and human right. It is far more appropriate for the Department for Culture to be responsible for this more subtle right than the Department for Business.
• Copyright is a property right
Those are the first 5 words of the Introduction to the Copyright, Designs and Patents Act. Stop43 never thought we’d see a Conservative-led government nationalise individuals' private property, yet exactly that is happening in a portmanteau Bill otherwise concerned with regulation. We need a proper Intellectual Property Act, not this dog's dinner.
• Orphan Works, Extended Collective Licensing and Hargreaves 'growth'
[What are Orphan Works? What is Extended Collective Licensing?]
The changes to copyright law are supposed to stimulate economic growth. According to the IPO’s latest estimates, these changes are unlikely to create any growth at all.
Stop43 notes that between the Hargreaves report and the IPO publishing 'Modernising Copyright', the IPO's estimates for UK growth as a result of implementing Hargreaves have been reduced by 97%. Yes, 97%: 'Hargreaves growth' is now estimated to be only 3% of that originally estimated and amounts to around 80p per UK taxpayer per year. This is risible. Once costs to rights owners ignored in the Impact Assessments have been factored in, we're probably looking at a net contraction of the UK economy:
Why on earth is BIS pressing on with this? Other orphan works solutions exist which will do less damage to rights owners than the IPO proposals: the EU Orphan Works Directive; Stop43's National Cultural Archive proposal; even the Legal Deposit Libraries regulations for archiving the UK Internet would solve the ‘orphan works problem’. They are directly analogous to the only orphan works scheme in operation in Scandinavia - that in Denmark.
• Who benefits?
David Cameron stated at the start of this process that changes to copyright law were necessary in order to help tech startups. What happens to tech startups? According to Demos, in general they suffer a similar fate to other startup businesses, with around half of them failing within five years. But what happens to the survivors? Again according to Demos the successful ones are mostly bought by US-based tech corporations. And so, the endgame of the copyright changes will be the draining of the economic value of UK’s creators’ property out of the UK and into the pockets of US corporations. Smart move, Dave. Well done.
• Extended Collective Licensing (ECL)
China is gearing up to legislate itself access to the word's IP under ECL for tuppence. We are about to legislate Berne-busting ECL without rights owners' safeguards being explicit in the primary legislation, as they are in the Nordic countries whose ECL schemes are being held up in every other way as a model for ours. Why? Why must we have 'Nordic' ECL without Nordic safeguards on the face of the Bill? The necessary legal safeguards are unlikely to change with time, and we are going to set a very bad example to the Chinese. How will we be able to object to their scheme if ours lacks primary safeguards in the Bill? A Statutory Instrument won't do - it's too easily changed, and the whole world knows it. The last time a Statutory Instrument was voted down was in 1979, and concerned the price of paraffin.
• Metadata and the ERRB
The ERR Bill legislates for the exploitation of orphan works without doing anything to prevent works from becoming orphan in the first place, and a major cause of orphaning is the stripping of metadata from digital images. The government is putting the cart before the horse in legislating for orphan works exploitation and ECL before it has a policy on metadata.
The Copyright Hub is coming together nicely and will probably render ECL obsolete. The Copyright Hub Metadata Workstream appears to be regarded as the Government’s inquiry into metadata and how it ought to be treated: “The Government are keenly aware of and sensitive to the concerns of creators in relation to metadata. They believe that an industry-led approach is most likely to identify the key issues and the most effective solutions. They warmly welcome the establishment of a metadata working group which brings together key players from across the industry, including the Association of Photographers, Stop43, the BBC, the British Association of Picture Libraries and Agencies, Getty Images and News Corporation. We will consider carefully any recommendations aimed at government and, if they are proportionate and effective, will certainly support them. I also commit to keeping Parliament informed on progress.
The Intellectual Property Office will also be working with the Technology Strategy Board to consider other options to tackle the issues around the misuse of digital images as well as search and stripping of metadata.” - Viscount Younger, Hansard, 6 March 2013
• The ERRB copyright clauses were placed there by the IPO. The IPO is out of control.
We’re in good company with that opinion because it's shared by the All Party Intellectual Property Group: ‘We think that because intellectual property is often a specialised subject, the IPO has been allowed freer rein by senior officials and Ministers within BIS, who would otherwise have taken greater interest. We believe this must change, and the development of policy by the IPO must be given far greater scrutiny by officials within the Department… The IPO also needs greater ministerial leadership. We urge the new minister to place a firm grip on the IPO and lead its policy making rather than follow their lead.’ - The Role of Government in Promoting and Protecting Intellectual Property, pages 5 & 6
When it was first introduced, ERR Bill Clause 56 gave the IPO carte blanche to introduce whatever copyright exceptions they thought they could get away with. Why did it take them six months (and significant Ministerial pressure) to rewrite that clause, which they said was only to preserve penalty levels if copyright exceptions were varied under the European Communities Act 1972 Section 2 (2), until it became Clause 77 and did exactly that and no more? It's hard for us to form any other view than that the IPO were simply trying to pull the wool over their Ministers' eyes and grant themselves far greater powers than the BIS ministers realised, in order to implement Hargreaves by stealth. Clause 56 was a Trojan Horse, as we said at the time.
HOW TO TAKE ACTION